United States v. Vallejo-Moreno ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT March 1, 2006
Charles R. Fulbruge III
Clerk
No. 05-40267
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PABLO MORENO-MORA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:04-CR-1244-ALL
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Before JOLLY, DAVIS, and OWEN, Circuit Judges.
PER CURIAM:*
Pablo Moreno-Mora (Moreno) appeals his conviction and
sentence for unlawful reentry in violation of 8 U.S.C. § 1326.
Moreno first argues that the district court erred by imposing a
16-level enhancement pursuant to U.S.S.G. § 2L1.2 for a prior
Maryland conviction for a crime of violence.
The record contains no indication of which section of the
Maryland statute was applied to Moreno. Accordingly, we cannot
determine whether the enhancement was proper. The Government’s
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
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contention that the offense is established by the Presentence
Report’s characterization of the offense as second-degree felony
assault is without merit. See United States v. Garza-Lopez, 410
F.3d 268, 274 (5th Cir.), cert. denied, 126 S. Ct. 298 (2005).
Accordingly, we vacate the sentence and remand for resentencing
in accordance with the procedure set forth in United States v.
Bonilla-Mungia, 422 F.3d 316, 321-22 (5th Cir. 2005). We do not
reach Moreno’s alternative argument that the sentence was
unreasonable under 18 U.S.C. § 3553(a).
With respect to Moreno’s contention that the district court
erred in ordering, as a condition of supervised release, that he
cooperate with the probation officer in the collection of DNA,
his claim is not ripe for judicial review in light of our holding
in United States v. Carmichael, 343 F.3d 756, 758 (5th Cir.
2003), cert. denied, 540 U.S. 1136 (2004). We reject Moreno’s
contention that Carmichael is distinguishable. See United States
v. Riascos-Cuenu, 428 F.3d 1100, 1102 (5th Cir. 2005), petition
for cert. filed, (Jan. 9, 2006) (No. 05-8662). Accordingly, we
dismiss this portion of the appeal for lack of jurisdiction.
Moreno’s constitutional challenge to § 1326(b) is foreclosed
by Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Although Moreno contends that Almendarez-Torres was incorrectly
decided and that a majority of the Supreme Court would overrule
Almendarez-Torres in light of Apprendi v. New Jersey, 530 U.S.
466 (2000), we have repeatedly rejected such arguments on the
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basis that Almendarez-Torres remains binding. See Garza-Lopez,
410 F.3d at 276. Moreno properly concedes that his argument is
foreclosed in light of Almendarez-Torres and circuit precedent,
but he raises it here to preserve it for further review.
CONVICTION AFFIRMED; APPEAL DISMISSED IN PART FOR LACK OF
JURISDICTION; SENTENCE VACATED AND REMANDED FOR RESENTENCING.